75 Ala. 275 | Ala. | 1883
The case comes before the court on appeal from a decree of the chancellor rendered in vacation, upon a motion made, on bill and answer, for the dissolution of a temporary injunction, restraining the apjjellants from the continuance of the construction of a railway on lands claimed by tire appellee as part of its own right of way. The temporary injunction was granted by the judge of the City Court of Selma, the bill being filed, and the lands situate in Calhoun county.
The first ground for the motion, now pressed in argument, is, that the judge of the City Court of Selma has not the power to grant an injunction which is to be operative without the county of Dallas. If this were conceded to be true, a motion for the dissolution of the injunction is not the appropriate remedy for the correction of the error or irregularity. A motion to dissolve can be founded only on a want of equity apparent on the face of the bill, or on a full and complete denial, by the verified answer of a material defendant, of the allegations upon which the equity of the bill depends. The motion itself is a waiver of the error or irregularity, if any, which may have attended the order for the issue of the writ, or which may be in the writ alone. These are available only upon motion for a discharge of the injunction, which must precede any act on the part of the defendant in recognition or affirmance of its regularity.—Jones v. Ewing, 56 Ala. 360.
The City Court of Selma is an inferior court of law and equity, established by an act of the General Assembly, in and for the countv of Dallas. It is styled an inferior court, not be
The allegations of the original bill are, that the complainant, the “ East Tennessee, Virginia & Georgia Bailroad Company,” is a corporation created by, and organized under the laws of the State of Tennessee; that in 1881, by purchase, it acquired the property and franchises of the Selma, Borne & Dalton Bail-road Company, which had a line of railway in this State, extending from Selma in a north-easterly direction to Prior’s station, at or near the boundary line of the State of Georgia. Prior to, and at the time of the purchase, and continuously from the year 1870, the Selma, Borne & Dalton Bailroad Company and its alienees had, and was possessed of a right of way along its road-bed, extending through the county of Calhoun, of one hundred feet, that is, of fifty feet on each side of the road-bed, computing from its centre. After the purchase, the complainant entered upon, and became possessed of such
The first point for consideration, not now looking to the answer, is, whether, upon the facts stated in the bill, a case of equitable jurisdiction is presented. For, although a motion to dissolve an injunction is submitted and heard in vacation, it should be sustained, the injunction ought not to be longer continued, whether the answer is, or is not sufficient, if it be apparent that the bill is without equity. The motion to dissolve, it ought, however, to be observed, can not and does not perform the office of a demurrer. It is not the form of the bill, nor the manner in which the facts are stated, nor the specific prayer for relief, which are of importance. All amendable defects, pro hao vice, should be regarded as cured by amendment, and the inquiry made, whether, if the facts were well pleaded, the case would be of equitable jurisdiction, and an injunction the appropriate remedy.—Chambers v. Ala. Iron Co., 67 Ala. 353.
The principle upon which a court of equity proceeds, in interfering to prevent bodies corporate having compulsory power to enter upon, take and appropriate for their own uses, the lands of others, differs materially from the principle upon which it intervenes to prevent the commission or continuance of waste, or of nuisances, or of trespasses, when only private rights, or the acts of persons, natural or artificial, not having such powers, are involved. In the latter class of cases, if the right be strictly legal, and there is no relation of privity between the parties, it is of the essence of the jurisdiction of the court, that a case of irreparable injury be shown ; a case for which the courts of law do not furnish an adequate remedy. The Constitution not only compels all corporate bodies, public or private, or all individuals who may be armed with the power of taking private property, but it compels the State and all its agencies and instrumentalities, to the duty
It is not of importance, therefore, to subject to analysis the
The averments of the bill deduce the title of the complainant to the lands, the subject of controversy, wholly from its possession, and from the antecedent possession of its privies or predecessors in estate, so long continued as to be evidence of title. Whether the title was derived originally from the license, or from the conveyance of the owner, or through judicial proceedings to which they were parties, is not averred. The fact of continuous, uninterrupted possession is vouched as the foundation and evidence of the right and title of the complainant. And, in this connection, it must not be overlooked that it is not the track or road-bed of the complainant, nor any of its side-tracks, or other like appurtenances of visible, notorious, continuous use, which form the subject of controversy. Beyond these, though within fifty feet of the centre of the track or road-bed of the complainant, the parcel of land in controversy is situated. The answer is in direct, unequivocal denial of the fact of possession by the complainant at the time of the entry upon, and taking of the land, and in like denial of a prior possession by the complainant, or by its privies or predecessors in estate. And, with equal clearness and distinctness, it affirms that the title and possession resided with other parties, from whom the defendant corporation had a license, or conveyance, under which it entered upon possession, and commenced the appropriation of the lands. The answer, in so far as it is in denial of the possession of the complainant, and of the possession of its predecessors or privies in estate, is direcly responsive to the allegations of the bill, and is in denial of ail the right and title to relief vouched by the complainant. It is
The general rule is well settled, that if a verified ansvrer fully and unequivocally denies the material allegations upon which the equities of the bill depend, a temporary injunction.
The decree of the chancellor must be reversed, a decree here rendered dissolving the injunction, and the cause remanded.